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R (On the Application Of Osawemwenze) v Secretary of State for the Home Department [2014] EWHC 1564 (Admin)

The refusal to leave to remain to the Claimant did not amount to a breach of the Claimant and his family’s Article 8 ECHR rights to a private and family life.
14 May 2014
Queen’s Bench Division, Administrative Court
Andrew Thomas QC
(1) By this application, the Claimant, a 44 year old national of Nigeria, sought judicial review of the Defendant’s decision to refuse him temporary leave to remain in the UK. The Claimant contended that to do so amounted to a disproportionate interference with his Article 8 rights to a private and family life. The Claimant argued that he should have been granted leave under Rule 276ADE(vi) of the Immigration Rules, or otherwise pursuant to the Defendant’s residual discretion.
(2) The Claimant had arrived in the UK in March 1999, and married his EEA national wife in 2004. Consequently, he was granted temporary leave to remain for 5 years. Since 2009, he continued to live in the UK without leave to remain. His applications for leave to remain were refused in 2011 and 2012. The Claimant divorced his first wife and married again in April 2013. His second wife was a national of Nigeria who did not have leave to remain. There are three children in the family. The first child, aged 14, has temporary leave to remain due to his living in the UK for more than 7 years.
(3) It was argued that as a parent of a child under 18 who had continuously been in the UK for 7 years, the Claimant qualified for leave under the rules. The Claimant also made reference to the Defendant’s duty regarding the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009. Aside from a letter from the minister of his church, no evidence was filed as to the Claimant’s private life outside of his family.
(4) At the hearing, two grounds were pursued:
(5) The Claimant had lost all ties with Nigeria, and so leave to remain should have been granted under Paragraph 276ADE(vi) of the Immigration Rules; and
(6) Alternatively, due to the Claimant’s family responsibilities towards his children, he should have been granted leave to remain outside of the rules.
(7) HELD: The burden was on the Claimant to show that there were obstacles to relocation, and the Court considered that there was no evidence that the Claimant had lost all ties to Nigeria. Accordingly, the claim on this ground could not succeed.
(8) In relation to ground (b), the Court had to consider whether the Claimant had shown that there were exceptional reasons why removal might be a disproportionate interference. The Court noted that there was no reason that the two youngest children could not relocate to Nigeria, the greatest issue was in relation to the eldest child who attended high school and had leave to remain.
(9) Applying section 55 made clear that the safety of the Claimant’s eldest child had to be of primary consideration. However, that did not necessarily require the family to be given the right to remain in the UK.
(10) The Claimant’s eldest child’s welfare had been correctly treated as a primary concern. Nonetheless, it was reasonable to expect the family to relocate to Nigeria. There was no reason that the parents would have lost all social, cultural and family ties.
(11) The Court found that the Defendant had given full and proper consideration of the Claimant’s Article 8 rights, including those rights of his family. The refusal of the Claimant’s application did not amount to a disproportionate interference with the Claimant’s rights, nor those of his family.
(12) The claim for judicial review was thus dismissed.
Claim dismissed.
Key paragraphs
[19] – No evidence lost ties.
[32] – Full consideration.
[34] – Primary concern.
[35] – Family ties.
[36] – Conclusion.